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MICHIGAN MEDICAL POT CASE COULD HIT TOP COURT
Speeding Stop Led to Charge of Driving Under Influence of Drugs
Return To OnlinePot's
Legal Section Main Page
 Michigan Medical Marijuana Patient Guilty Of Driving Under The Influence Of Marijuana
MOVE ALONG Driving 101
A cop offers advice on not getting stopped by law enforcement.
TRAVERSE CITY -- Rodney Koon may have to spend $30,000 or more to fight a
misdemeanor arrest for driving a car the same day he legally used medically
prescribed marijuana.
Koon, 49, a laid-off Traverse City roofer, was stopped for speeding Feb. 3
on Garfield Road. A Grand Traverse County deputy found a pipe in his
pocket, and Koon readily acknowledged he smoked marijuana that day.
He also showed the deputy a state certificate that allows him to use marijuana
for medical purposes.
"I was honest ... that was my mistake," said Koon, who uses
marijuana for a variety of ailments, including herniated discs in his back, a
pinched nerve in his neck, rheumatoid arthritis of the spine and stomach
problems. "I told him I had medicated six hours earlier. After
that he was all hot to bust me on a drug charge."
Koon's speeding stop sparked a legal tussle in Traverse City over aspects of the
medical marijuana law state voters approved in 2008.
Grand Traverse County authorities charged Koon with driving under the influence
of drugs because he tested positive for THC, the primary psychoactive ingredient
in marijuana. Prosecutor Alan Schneider based his case against Koon on a
law that finds a person guilty if he tests positive for the smallest detectable
amount of a controlled substance.
But two area judges disagreed. They said the Michigan Medical Marijuana
Act supersedes a state controlled substance law and ruled Schneider must show
that the legal use of medical marijuana impaired Koon's ability to drive a car.
"Evidence of impairment is a necessary requirement," wrote 13th
Circuit Court Judge Philip Rodgers in upholding a district court judge's
decision that prevented a prosecutor in Koon's scheduled Sept. 2 trial
from inserting favorable jury instructions. The trial was postponed.
"The ( prosecutor ) has not alleged ... the defendant's actions and
mannerisms at that time indicated a visible or substantial impairment with
regard to his driving," Rodgers wrote.
No Penalties for Medical Marijuana Use?
Rodgers noted the medical marijuana act states that certified users cannot be
"subject to arrest, prosecution, or penalty in any manner . for the
medical use of marijuana."
The statute goes on to state that all other laws not consistent with the medical
marijuana act do not apply. But the act also prohibits any person from
operating a motor vehicle while "under the influence" of marijuana.
Schneider disagreed with Rodgers' ruling and plans to appeal, all the way to the
state Supreme Court, if necessary.
"To say this caveat ( in the marijuana act ) supersedes another state law
is highly questionable," Schneider said. "The court or the
legislature needs to clarify this, and I think we have to force the issue."
Matthew Abel, general counsel for the Michigan Chapter of the National
Organization for the Reform of Marijuana Laws, said Schneider can parse the
marijuana act's language all he wants, but said "a caveat is still the
law."
The language is clear and Schneider won't change it on appeal, he said.
"He should run for the Legislature if he wants to set policy," Abel
said. "In the meantime, he should mete out his justice with
temperance and compassion."
Koon said he's survived the housing industry collapse by working as a handyman
over the last two years. He's frustrated by what he believes is
Schneider's attempt to stop him from driving or working any time he medicates
with marijuana.
"We the people changed this law; 70 percent of the people voted for it, and
now these law enforcers want to interpret it anyway they want," Koon said.
His attorney tells him not to worry about Schneider's appeal, and area medical
marijuana groups support him. But he'll need financial help to maintain an
appeal he's been told could hit $30,000, beyond the $3,000 he's already spent on
attorney fees.
"The stress from this affects everything I do," Koon said.
"Stress really isn't the word for it. It's totally degrading."
'Just One or Two Hits'
The incident that prompted the court case wasn't one in which Koon simply was
cruising down the road, smoking a joint, getting high. He'd last smoked
more than five hours earlier, he said.
"When you medicate you take just one or two hits," he said.
A deputy stopped Koon on his way home from a job about 6 p.m. on Garfield
Road in East Bay Township. The deputy said Koon hit 83 miles per hour in a
55 mph zone as he passed a truck, though a speeding ticket was not issued.
The deputy said he smelled alcohol and Koon admitted he had a beer after work.
The deputy asked Koon to step out of the car and consent to a search because of
the deputy's concern Koon might have a utility knife or other carpentry tool,
according to a sheriff's department report.
The deputy said Koon passed most impairment tests, but wrote he could not stand
on one leg for 30 seconds, and during a heel-to-toe walking test had a gap in
excess of one-half inch.
Koon said he can't stand on one foot due to his back problems. He was
arrested and a blood test came back positive for THC at 10 nanograms per
milliliter.
Abel, the pro-marijuana group's lawyer, said there's little, if any research on
THC levels and driving.
Koon's blood alcohol level was .03, well below the .08 percent level for drunken
driving, Schneider said.
Schneider said prosecutors likely will not be able to prove Koon's use of
marijuana impaired his driving. He declined to speculate if the amount of
THC in Koon's blood was too high to safely drive.
"I'm not a scientist," he said.
Schneider said the Legislature needs to come up with a level similar to the .08
percent blood alcohol level established for drunken driving.
Abel agreed -- to an extent.
"The proper way to do that is through research and testing, not on the
backs of patients," he said.
Pubdate: Sun, 28 Nov 2010
Source: Traverse City Record-Eagle (MI)
Copyright: 2010 The Traverse City Record-Eagle
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